Page images
PDF
EPUB

PAPER

READ BY

CHARLES A. GRAVES.

EXTRINSIC EVIDENCE IN RESPECT TO WRITTEN
INSTRUMENTS.'

The title of the paper which I have the honor to read this morning is in striking contrast with the topics which have been selected by the distinguished gentlemen who follow me on the programme. As befits one who comes from the quiet and seclusion of what may be termed the cloister of the law, I have chosen for my theme the consideration of results already reached; while they, fresh from the heat and dust of the arena, will speak to you of "Changes in Legislation" and "The Readjustment of the Law." And this is natural and right. In the language of Von Ihering in his brilliant essay, "The Struggle for Law," "All the law in the world has been obtained by strife. Every principle of law which exists had first to be wrung by force from those who denied it; and every legal right-the legal rights of nations as well as those of individuals—supposes a continual readiness to assert it and to defend it. The law is not mere theory, but living force." It might well be expected, therefore, that the "mighty men of valor," who have " gone down to the battle" in this ceaseless conflict for legal right, should report to their comrades what readjustment of the lines and what new weapons are needed; while to one whose humbler duty it has been to "tarry by the stuff," it may be permitted to furnish, as it were, an inventory of some of the weapons already in the legal armory, to show when they are available and when their use is forbidden by the rules of war, and thus

1 At the request of members of the Bar Association, additional matter prepared for this paper, by way of explanation and corroboration, is printed in foot-notes.

[ocr errors]

perhaps to render some slight assistance to the fighting men when next they shall be called on to encounter the enemy.

It will not be supposed by an audience already familiar with the subject, that I propose, within the limits proper for this paper, to consider, in all its aspects, a branch of the law so extensive as that which is covered by the title "Extrinsic Evidence in respect to Written Instruments." My purpose is to confine the discussion to the use which may properly be made of extrinsic evidence in the interpretation of a valid written instrument, of a contractual or dispositive character, assuming such instrument to exist, and to be brought before the court for construction only. I shall thus avoid any inquiry as to the use of extrinsic evidence to show the invalidity of the instrument on the ground of want of delivery, the non-performance of a condition precedent, fraud, illegality, and the like.1 Nor shall I stop to consider the rule of substantive law which forbids the use of parol evidence to contradict or vary the terms of a valid written instrument." Greenlf. Evid., § 275, et seq. On the contrary, I shall assume that the evidence is offered in aid of the construction of the instrument, and not avowedly to destroy it or to substitute a different instrument in its stead. And while the doctrines to be considered are equally applicable to all legal or solemn instruments,2 it will conduce to brevity and clearness to take a will as the best type of such instruments, since it is upon wills that questions of interpretation most frequently arise, and the cases on wills furnish the best illustrations of the subject. Let us, then, in obedience to the injunction of old Bracton-" and it is commonly said that you must first catch your buck and afterwards skin him" ".

66

I

1 For full discussion of these topics, see Browne on Parol Evidence-a valuable treatise recently published.

2 Thus in Thayer's "Cases on Evidence," p. 928, note 1, it is said: "In considering Wigram's Propositions, it is not to be supposed that the rules relating to wills are essentially different from those concerning other solemn instruments." So in Stephen's "Digest of the Law of Evidence," the author considers in Art. 91, "What Evidence may be given for the Interpretation of Documents"; and in Note XXXIII. of the Appendix he says: "Article 91, indeed, will be found to differ from the six (seven?) propositions of Vice-Chancellor Wigram only in its arrangement and form of expression, and in the fact that it is not restricted to wills." See also Blackburn's "Contract of Sale," p. 50, note; Grant v. Grant, L. R. 5 C. P., pp. 728–9; 2 Taylor, Evidence, s. 1226. 3 See Bracton's "Laws and Customs of England," Book 4, chapter 31, 191 b., where the Latin is," Et vulgariter dicitur, quod primo opportet cervum capere, et postea cum captus fuerit illum excoriare."

assume the existence of a valid written will, and proceed to inquire what use can properly be made of extrinsic evidence in aid of its interpretation.

In order to answer this question it becomes necessary to determine the true object of legal interpretation, for the means to be employed must be adapted to the end in view. What is it that the judicial expositor seeks to ascertain-is it the meaning of the words or the meaning of the writer? The question is frequently put in this way, as if the disjunction were complete, and the answer must be either the one or the other. We answer, neither. Not the meaning of the words alone, nor the meaning of the writer alone, but the meaning of the words as used by the writer. It is not the meaning of the words in the abstract, for the meaning of words varies with the circumstances under which they are used; and not the meaning of the writer apart from his words, for the question is one of interpretation, and what the writer meant to have said, but did not, is foreign to the inquiry; and voluit sed non dixit is the law's epitaph on a will which thus fails of its purpose. We must seek the meaning of the writer, but we must find it in his words; and we must seek the meaning of the words, but it must be the meaning of his words— of the words as he has used them-the meaning which they have "in the mouth of this party," to use the language of C. B. Eyre. Gibson v. Minet, 1 H. Bl., 615. For, as has been well said by Wigram (Ext. Evid., Pl. 105), "Courts of law recognize that natural dependence which exists between language and the circumstances with reference to which it is used, and which makes a knowledge of such circumstances necessary to a right interpretation of the language." And in another place (Pl. 59) he contrasts the evidence applicable to the purpose of determining the meaning of the words in the abstract with that resorted to in order to determine their meaning in the will.'

1In a valuable paper on "The Principles of Legal Interpretation," read before the Juridical Society of England, by F. Vaughan Hawkins, Esq., afterwards author of the well-known treatise on the construction of wills, it is contended (Jurid. Soc. Papers, Vol. II., p. 298, et seq.), that the office of the interpreter is to discover the intention of the writer-the meaning of the writer and not the meaning of the words. But as Mr. Hawkins is careful to state that by intention throughout his paper he means "not a mere inchoate act of the mind, not that which a person intended to do, but took no step towards doing, but something which as a mental act was complete, and which the writer

We have defined judicial interpretation as having for its ultimate object the meaning of the words as used by the writer— this being the equivalent of the legal intention, i. e., the intention which the law recognizes as operative and dispositive. But it must not be supposed that the actual use of words by a testator can always be taken cognizance of by a court of construction, and given effect as determining his will. For there are rules of law, and legal rules of construction, which fix the use of certain words, or forms of expression; and the testator is held to have used them in the technical legal sense, though the judicial expositor may be persuaded to the contrary. I need not remind this audience of the rule in Shelley's case-now happily defunct in this Commonwealth-nor of the meaning formerly attached to the words, "if he die without issue." And a notable example was formerly found in a devise "to A," without words of limitation, which per se (i. e., without aid from the context) conferred on A a life estate only, though judges have frequently confessed

endeavored to express by the words he made use of, although these words in fact express his meaning more or less imperfectly "; and as he further admits that the intention is unavailing unless sufficiently expressed in the writing, it would seem that this differs but little from ascertaining the meaning of the words as used by the writer. On the other hand, it is frequently said that in expounding a will the question is, not what was the intention of the testator, but what is the meaning of the words he has used. See Rickman v. Carstairs, 5 B. & Ad., 663; Doe v. Gwillim, 5 Id., 129; Grey v. Pearson, 6 H. L. C., 106. And in several Virginia cases it is said that" the inquiry is not what the testator meant to express, but what the words he has used do express.' See Wooton v. Redd's Ex'or, 12 Gratt., 196, 207; Burke v. Lee, 76 Va., 386, 388; Senger v. Senger, 81 Va., 687, 696. But it is not believed that by the above expressions the learned judges meant to deny the proposition that the object of interpretation is to ascertain the meaning of the words as used by the writer. Thus in Grey v. Pearson, 6 H. L. C., 106, it is said by Lord Wensleydale, "The will must be in writing; and the only question is, what is the meaning of the words used in that writing"; but he immediately adds that in order to ascertain the meaning of the words, "every part of it (i. e., the will) must be considered, with the help of those surrounding circumstances which are admissible in evidence to explain the words, and put the court as nearly as possible in the situation of the writer of the instrument"-which shows that by the expression "meaning of the words used in the writing" he intends not the meaning of the words in the abstract, but their meaning as used by the writer upon the particular occasion. And see article by Francis Morgan Nichols, Esq., on "The Rules which ought to govern the admission of Extrinsic Evidence in the interpretation of Wills" (2 Jurid. Soc. Papers, 351), where it is suggested that the opposing views as to the object of interpretation can be reconciled if the problem of interpretation be put in either of the two following forms: "What is the intended meaning of the words, or in what sense did the writer intend his words to be understood?" It will be seen that this is in effect the same thing as the meaning of the words as used by the writer. And see Hawkins on Wills, p. 1; Leake's Dig. Contracts, p. 217.

« PreviousContinue »